Chiwombererwa Patrick Mapfumo and Esther Mapfumo v Divvyland Investments (Pvt) Limited and Others

The first and third respondents entered into a verbal instalment agreement for the sale of property at 12 Le Roux Drive, Hillside, Harare in 2009. The third respondent paid a substantial amount but the seller (first respondent) never reduced the agreement to writing. The third respondent donated the property to the applicants pursuant to a deed of donation, and the applicants took occupation. The first respondent sued for eviction of the third respondent in HC 6567/17, obtaining a favourable judgment on 10 April 2019, which was overturned on appeal by the Supreme Court in SC 250/19 (SC 138/21 on 5 November 2021). The Supreme Court order granted eviction of the third respondent "and all those claiming title through him" from the property. Although the first respondent was aware of the applicants' occupation and their deed of donation, the applicants were not joined as parties to either the High Court or Supreme Court proceedings. The applicants had been in occupation for several years and had made improvements to the property as their family home.

• Whether the High Court has jurisdiction to entertain a constitutional challenge arising from or relating to a decision of the Supreme Court
• Whether an eviction order against 'all those claiming title through him/them' without citing all occupiers violates sections 56 and 74 of the Constitution of Zimbabwe
• Whether applicants have locus standi to bring the constitutional application
• Whether the practice of evicting occupiers not joined as parties to proceedings constitutes arbitrary eviction contrary to section 74 of the Constitution
• Whether failure to join occupiers whose rights would be affected violates the right to equal protection and benefit of the law under section 56 of the Constitution

The applicants' claim was dismissed with costs. The court upheld the preliminary point on jurisdiction as dispositive of the whole matter and did not determine the remaining preliminary objections.

The High Court of Zimbabwe does not have jurisdiction to entertain a constitutional challenge that is directed at or arises from a decision of the Supreme Court, even where the High Court has concurrent jurisdiction with the Constitutional Court in constitutional matters under section 171(c) of the Constitution. Once the Supreme Court issues an order, it can only be interfered with by itself and by no other court. Constitutional challenges to Supreme Court decisions must be brought before the Constitutional Court, not the High Court.

The court acknowledged the applicants' difficult position, noting that they had been in occupation for several years, had made improvements to the property as their family home, and held occupation rights from a lawfully executed deed of donation. The court observed that there is established authority that parties whose rights would be affected by a decision should be joined to proceedings, and that courts should raise non-joinder mero motu in cases of necessity to safeguard the interests of third parties (citing Drum City (Private) Limited v Garudzo SC 57/18). The court noted that the first respondent chose not to incorporate the applicants in the eviction proceedings, and that through ignorance or inadvertence the applicants testified in the action matter but never sought to be joined. The court made the observation: 'One cannot be faulted to say, as oft stated, "The law is an ass", but nevertheless, it must be obeyed for the preservation of the rule of law.' The court was also cognisant of a judgment in HC 214/22 in favour of the applicants, distinguishing it on the basis that the High Court has jurisdiction to execute and implement Supreme Court orders but not to revisit the judgments themselves.

This case clarifies the jurisdictional boundaries between the High Court and Constitutional Court in Zimbabwe, particularly in relation to constitutional challenges arising from Supreme Court decisions. It establishes that even where the High Court has concurrent constitutional jurisdiction under section 171(c) of the Constitution, it cannot exercise that jurisdiction to review, query, rescind or set aside decisions of the Supreme Court, even on constitutional grounds. The case reinforces the principle that grievances from appellate court decisions, including constitutional challenges, must be directed to the Constitutional Court. The case also illustrates the tension between procedural requirements (proper joinder of parties) and the finality of superior court decisions, highlighting that failure to seek joinder at the appropriate time may result in loss of rights despite apparent constitutional violations.